VEHICLE MASS, DIMENSION AND LOAD RESTRAINT BREACHES

Breaches for these type of offence are strict liability offences and whilst at common law, for an offence of strict liability, a defence of honest and reasonable mistake of fact would have been available (Proudman v Dayman [1941] HCA 28 and CTM v The Queen [2008] HCA 25 (11 June 2008)).

However, this defence has been repealed in relation to these provisions by virtue of s 90 of the Road Transport (General) Act 2005 (NSW) – ‘the Act’. Hence, the only defence available is a statutory defence referred to within s56(3) and s87 of the Act – known as the reasonable steps defence. The onus of this defence, falling upon the defendant on the balance of probabilities. This defence has been judicially considered in the cases of:

(1) If a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the "reasonable steps defence" for an offence relating to a mass requirement, it is a defence to a prosecution for an offence alleged to have been committed by a person as the driver, owner or operator of a vehicle or combination if the defendant establishes that the defendant:

(a) did not know, and could not reasonably be expected to have known, of the contravention, and

(b) had taken all reasonable steps to prevent the contravention.

(2) If the relevant contravention resulted from the fact that the mass of the vehicle or part of the vehicle (together with the mass of any load on the vehicle or part of the vehicle) exceeded any limit prescribed by the regulations, then the court is not entitled to be satisfied that the defendant took all reasonable steps to prevent the contravention unless it is satisfied that the defendant took all reasonable steps to cause the mass of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred.

(3) The court is not entitled to be satisfied that the defendant took all reasonable steps to cause the mass of a load to be ascertained unless it is satisfied that:

(a) the load had been weighed, or

(b) the defendant, or the driver of the vehicle, was in possession of sufficient and reliable evidence from which that weight was calculated.

(4) Subsections (2) and (3) do not apply if the defendant satisfies the court that at all material times that the defendant did not, either personally or through any agent or employee, have custody or control of the vehicle concerned.

(5) If the defendant is a corporation, then, in order to satisfy the court that the corporation did not know and could not reasonably be expected to have known of the relevant contravention, the corporation must satisfy the court that:

(a) no director of the corporation, and

(b) no person having management functions in the corporation in relation to activities in connection with which the contravention occurred, knew of the contravention or could reasonably be expected to have known of it.

Hence, as can be seen this is a two limbed defence of which there are further step or stages of the defence depending upon whether the defendant is a person or corporation – whilst not in order of the section, the first requirement (unless subsection 4 applies) being subsection 3 – the court must be satisfied that the load had been weighed or the driver was in possession of sufficient and reliable evidence from which that weight was calculated.

This weighing or driver information must have been available prior to the commencement or start of the journey (as per s87(2)). If the mass of the load had been ascertained or the driver was in possession of reliable information relating to same, a corporation must then satisfy subsection 5 that no person in a position of responsibility relating to the company was aware or could have reasonably expected to have known of the contravention.

The defence is somewhat easier to establish if subsection 4 can be satisfied – that is that the defendant or his agent at all material times did not have custody or control of the vehicle. However, even if this subsections is established the defendant would still be required to satisfy the court that they could not reasonably be expected to have known of the contravention and that they had taken all reasonable steps to prevent the contravention - hence, positive evidence is required of the steps taken by the defendant in them having tried to prevent the contravention.

As can be seen below substantial penalties can be imposed for these types of breaches particularly for corporations.

Relevant Statutory Provisions:

ROAD TRANSPORT (GENERAL) ACT 2005 - SECT 56

56 Liability of operator

(1) A person is guilty of an offence if:

(a) a breach of a mass, dimension or load restraint requirement occurs, and

(b) the person is the operator of the vehicle or combination concerned.

Maximum penalty: see Table to Division.

(2) If the breach concerned is a minor risk breach, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.

(3) If the breach concerned is a substantial risk breach or a severe risk breach of a mass requirement, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.

ROAD TRANSPORT (GENERAL) ACT 2005 - SECT 34

34 Lower limits-mass breaches

(1) This section applies to a mass requirement imposed by reference to:

(a) a legislatively specified mass requirement, or

(b) a manufacturer’s mass rating, or

(c) the lower of:

(i) a legislatively specified mass requirement, and

(ii) a manufacturer’s mass rating,

for a vehicle or combination, or for any component of a vehicle or combination, or for any load in or on a vehicle or combination.

(2) Substantial risk breach The lower limit for a substantial risk breach of a mass requirement to which this section applies is:

(a) in the case of a mass requirement that relates to the gross mass of a vehicle or combination:

(i) 105% of the maximum permissible mass, rounded up to the nearest 0.1 tonne, or

(ii) 0.5 tonne,

whichever is the greater, or

(b) in any other case-105% of the maximum permissible mass, rounded up to the nearest 0.1 tonne.

Note: 105% of the maximum permissible mass is equivalent to the permissible mass plus an additional 5%.

(3) Severe risk breach The lower limit for a severe risk breach of a mass requirement to which this section applies is 120% of the maximum permissible mass, rounded up to the nearest 0.1 tonne.

Note: 120% of the maximum permissible mass is equivalent to the permissible mass plus an additional 20%.

ROAD TRANSPORT (GENERAL) ACT 2005 - SECT 59

59 Penalty levels: offences referred to in Table to Division

(1) Application of section

This section applies to the offences referred to in the Table to this Division.

(2) Penalties for individuals A court may impose on an individual who is found guilty of an offence to which this section applies, being the first offence for which the offender has been found guilty under the provision concerned, a penalty not exceeding the maximum penalty indicated in respect of the offence in Column 2 of the Table to this Division.

(3) A court may impose on an individual who is found guilty of an offence to which this section applies, being the second or any subsequent offence for which the offender has been found guilty under the provision concerned, a penalty not exceeding the maximum penalty indicated in respect of the offence in Column 3 of the Table to this Division.

(4) Penalties for bodies corporate A court may impose on a body corporate that is found guilty of an offence to which this section applies, being the first offence for which the offender has been found guilty under the provision concerned, a penalty not exceeding the maximum penalty indicated in respect of the offence in Column 4 of the Table to this Division.

(5) A court may impose on a body corporate that is found guilty of an offence to which this section applies, being the second or any subsequent offence for which the offender has been found guilty under the provision concerned, a penalty not exceeding the maximum penalty indicated in respect of the offence in Column 5 of the Table to this Division.

ROAD TRANSPORT (GENERAL) ACT 2005 - SECT 90

90 Defence of mistaken and reasonable belief not available for specified offences

In any proceedings for offences under the following provisions, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence:

(j) section 81 (Complicity and common purpose (aiding and abetting)), but only in so far as it relates to an offence referred to in this section.

ROAD TRANSPORT (GENERAL) ACT 2005 - SECT 60

60 Matters to be taken into consideration by courts

(1) The purpose of this section is to bring to the attention of courts the general implications and consequences of breaches of mass, dimension or load restraint requirements when determining the kinds and levels of sanctions to be imposed.

(2) In determining the sanctions (including the level of fine) that are to be imposed in respect of breaches of mass, dimension or load restraint requirements, a court is to take into consideration the classification of the breach under this Part and, having regard to that classification, the following matters:

(a) minor risk breaches involve either or both of the following:

(i) an appreciable risk of accelerated road wear,

(ii) an appreciable risk of unfair commercial advantage,

(b) substantial risk breaches involve one or more of the following:

(i) a substantial risk of accelerated road wear,

(ii) an appreciable risk of damage to road infrastructure,

(iii) an appreciable risk of increased traffic congestion,

(iv) an appreciable risk of diminished public amenity,

(v) a substantial risk of unfair commercial advantage,

(c) severe risk breaches involve one or more of the following:

(i) an appreciable risk of harm to public safety or the environment,

(ii) a serious risk of accelerated road wear,

(iii) a serious risk of harm to road infrastructure,

(iv) a serious risk of increased traffic congestion,

(v) a serious risk of diminished public amenity,

(vi) a serious risk of unfair commercial advantage.

(3) Nothing in this section affects any other matters that may or must be taken into consideration by a court.

(4) Nothing in this section authorises or requires a court to assign the breach to a different category of breach.

(5) Nothing in this section requires evidence to be adduced in relation to the matters that are to be taken into consideration by a court pursuant to this section.